By Eric Schweibenz
On December 19, 2013, the International Trade Commission (the “Commission”) issued a notice terminating the investigation with a finding of no violation of Section 337 in Certain Computers and Computer Peripheral Devices and Components Thereof and Products Containing the Same (Inv. No. 337-TA-841). 

By way of background, this investigation is based on a March 27, 2012 complaint filed by Technology Properties Limited LLC alleging violation of Section 337 by a number of Respondents in the importation into the U.S. and sale of certain computers and computer peripheral devices, components thereof, and products containing the same that infringe one or more claims of U.S. Patent Nos. 6,976,623 (the ‘623 patent), 7,162,549 (the ‘549 patent), 7,295,443 (the ‘443 patent), 7,522,424 (the ‘424 patent), 6,438,638 (the ‘638 patent), and 7,719,847 (the ‘847 patent).  See our March 29, 2012 and April 30, 2012 posts for more details on the complaint and notice of investigation, respectively.  On August 2, 2013, ALJ Theodore R. Essex issued his initial determination (“ID”) and found that (1) a violation of Section 337 has occurred in this investigation with respect to claims 1-4 and 9-12 of the ‘623 patent, and (2) no violation of Section 337 has occurred in this investigation with respect to claims 7, 11, 19, and 21 of the ‘549 patent; claims 1, 3, 4, 7, 9, 11, 12, and 14 of the ‘443 patent; claims 25, 26, 28, and 39 of the ‘424 patent; claims 17-19 of the ‘623 patent; and claims 1-3 of the ‘847 patent.  See our August 8, 2013 post for more details on ALJ Essex’s notice of ID.  

According to the December 19, 2013 notice, the Commission determined:
For the ‘623 patent, the Commission adopts the respondents’ proposed construction of “accessible in parallel.”  The Commission therefore reverses the ID’s finding of infringement as to that patent.  Based upon that claim construction, the Commission also finds that TPL has not demonstrated the existence of an article protected by the ‘623 patent.  The Commission finds that the Federal Circuit’s decisions in InterDigital Communications, LLC v. ITC, 690 F.3d 1318 (Fed. Cir. 2012), 707 F.3d 1295 (Fed. Cir. 2013) and Microsoft Corp. v. ITC, 731 F.3d 1354 (Fed. Cir. 2013), require a complainant to make such a demonstration regardless of whether the domestic industry is alleged to exist under 19 U.S.C. § 1337(a)(3)(A), (B), or (C).

For the ’443, ‘424, and '847 patents, the Commission affirms the ID’s determination that TPL failed to demonstrate that the accused products infringe the asserted claims. The Commission also finds for these three patents that TPL failed to demonstrate the existence of a domestic industry because it failed to demonstrate the existence of articles practicing these patents.

TPL did not raise the ’549 patent in its petition for review. 19 C.F.R. § 2l0.43(b)(2). The Commission affirms the ID’s noninfringement finding, and its finding that TPL failed to show that its domestic industry products meet certain claim limitations.

The reasons for the Commission’s determinations will be set forth more fully in the Commission’s opinion.

Commissioner Aranoff dissents from the Commission’s finding that TPL was required to demonstrate the existence of articles practicing the asserted patents in order to show a domestic industry based on licensing under 19 U.S.C. § 1337(a)(3)(C).

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